|Over 30 detainees at the Guantanamo prison await prosecution, possibly before a military panel [File: GALLO/GETTY]
The prospect of the United States charging Guantanamo Bay detainees before new military tribunals has unleashed a torrent of protests from human-rights groups.
The New York Times reported on Wednesday that Robert Gates, US defence secretary, would soon
lift an order blocking new cases from being initiated against detainees in special courts known as military commissions, a ban Barack Obama, US president, had ordered on his first day in office.
The Pentagon would not immediately confirm the report.
According to the US daily, three detainees will be referred for new charges, including Abd al-Rahim al-Nashiri, accused of having organised the 2000 attack on the USS Cole that killed 17 sailors in Yemen.
Al-Nashiri is among three Guantanamo detainees US authorities acknowledge were tortured. He was subjected to the simulated drowning technique of waterboarding, as well as threatened with a gun and a power drill.
"Trying Guantanamo detainees in a system that is designed to ensure convictions, not fair trials, strikes a major blow to any efforts to restore the rule of law," the American Civil Liberties Union said in a statement.
It urged the Obama administration to try the suspects in US federal courts, which have "well-established rules of procedure and evidence".
A legal quagmire
While the decision to resort to military commissions for cases such as Nashiri's is seen by some as a reversal of the Obama's promise to close Guantanamo, Mason Clutter, counsel for the rule of law programme at The Constitution Project, a Washington-based think-tank, told Al Jazeera that the move is not a step back.
"We're moving forward, but we're moving forward in the wrong system. We should be moving forward in our traditional criminal justice system," he said.
According to Human Rights first, as of January 18, the following figures apply to prison:
- 779 prisoners in total
- 173 currently held
- 48 held without charge
- 6 deaths in custody
- 5 convictions by military tribunal
Clutter said it was "disappointing" that Obama's administration has given "new life" to the military tribunals, allowing for new cases to proceed under the system. She said this will only "delay justice for the victims of 9/11 and their families".
Military tribunals - even as amended by the Obama administration - present issues that are not present in the US civilian justice system, under which one Guantanamo detainee, Ahmed Ghailani, was tried and convicted in the fall of 2009 (he was found not guilty of all but one of the 286 charges levelled against him in connection with the 1998 bombings of two US embassies in Africa).
His sentencing hearing is scheduled for January 25.
For example, Clutter said that certain types of evidence that would not be admissible in a civilian court - such as hearsay - are admissible before a military panel.
It is possible that allowing for new cases to proceed via military tribunal is the administration's way of moving things forward, given that the defence authorisation bill passed by congress in December limits the president's ability to transfer detainees using defence funds.
But Clutter argued that there are still fund available from other sources, such as the US justice department, to help facilitate the transfer.
"This is the first time that we have seen congress overstepping and dictating how and where detainees should be tried, essentially tying the hands of the president, Clutter said.
Still, 59 of the detainees held at the facility have been scheduled for release by the Obama administration, although given the concerns tied to their release - diplomatic wrangling, issues with repatriating detainees into countries with security issues, such as Yemen etc - the men have yet to be freed.
Even though the new cases will make it harder for Obama to shutter Guantanamo, Clutter has faith that Obama is focused on ultimately clearing out Guantanamo Bay, which has not had a new detainee since 2006.
"The administration remains committed to closing the facility," she said.
About 30 detainees at the Guantanamo prison, a US naval base Obama had hoped to close within his first year in office. But he later backpedalled in the face of congressional opposition.
The use of military tribunals at Guantanamo Bay, a US naval base, began in 2006, when the US congress passed the Military Commissions Act of 2006, allowing for the indefinite imprisonment of "unlawful enemy combatants", preventing them from access to the evidence against them and holding that "no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever".
Numerous legal challenges to the law (Rasul v. Bush, Hamadi v. Rumsfeld, Hamdan v. Rumsfeld and Boumediene v. Bush) eventually yielded change when the order was ultimately amended in 2009, making some changes in what sort of evidence could be used against defendants in military tribunals and how that evidence could be used against them.
While a comparison between the 2006 and the 2009 versions of the act shows notable differences, human-rights groups criticise the decision to allow more cases to be tried under even the new version of the act.
The Center for Constitutional Rights, which represents some Guantanamo detainees, said it was "very disappointed" in Obama, predicting the move will "cost the United States foreign popular and diplomatic support that is essential to legitimate law enforcement efforts against terrorism".
Joining the chorus of critics was Human Rights First, which cited Obama's own defence one month ago of using federal courts to try terrorism defendants.
"But with the exception of one Guantanamo detainee who was convicted in federal court last month, President Obama has failed to use that tool," the group said.
Additional reporting by Al Jazeera's D. Parvaz